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Punjab-Haryana High Court
Rekha vs State Of Punjab And Ors on 3 May, 2024
Neutral Citation No:=2024:PHHC:061475
CWP-14370-2017 (O&M) 2024:PHHC:061475
-1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
208 WP-14370-2017 (O&M)
C
Date of decision: 03.05.2024
Rekha
...Petitioner
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY ***** Present : Mr. V.K. Shukla and Mr. Ashish Gupta, Advocates for the petitioner. Mr. Arun Gupta, DAG, Punjab. ***** AMAN CHAUDHARY, J. (Oral) 1. The prayer made in the present petition is for directing the respondentstoconsiderandregularizetheservicesofthepetitionersintermsof the Punjab Government Policy Instructions dated 04.03.1999, Annexure P-2 and for granting all consequential benefits. 2. Learned counsel would submit that the petitioner, who was appointed as part-time Sweeper in the office of District Treasury Officer in July, 2006, had been working continuously since, thus was entitled to regularization as per policy dated 04.03.1999, Annexure P-2, which she was denied. Reference has been made to State of Punjab and others vs. Surjit Kaur, LPA-771-2015, decided on 29.04.2016, against which SLP stands dismissed vide judgment dated 09.12.2016, wherein the petitioner, who was also working on part-time basis as a sweeper, was granted similar benefit as claimed in the present petition, the relevant parasthereof read thus: " Having held that, it may be further seen that the policy decision dated 4th March, 1999 is undeniably a welfare scheme launched by the State of Punjab in 1 of 5 ::: Downloaded on - 07-05-2024 02:35:32 ::: Neutral Citation No:=2024:PHHC:061475 CWP-14370-2017 (O&M) 2024:PHHC:061475 -2- d eference to its Constitutional obligations. The policy has beenissuedtoachievealaudableobjecttoconferthestatus ofregularemployeesonthoseClassIVpart-employeeswho are in service for 10 years or more. It may betruethatthe policy contemplates adjustment of part-time Class IV employees against 25% vacancies which were to become available after the policy has come into force. However, if the authorities find that due to nonavailability of requisite vacancies, they were unable to achieve the object and purpose of the policy, even in those case where part-time employee has reached the age of superannuation, it was imperative upon them to re-visit and re-modulate thesame so that it does not turn out to be a false promise or a mirage. hould such a policy remain on papers or its object S must percolate to net-end beneficiaries, at least to those who, after long span of 30 years of service, have attained the age of retirement, is a question which the authorities themselves ought to have addressedinsteadofawaitingfor the court directions. earesurethattheStateofPunjabwilllookintothis W aspect of the matter and re-structure the policy in such a manner that services of Class IV part-time employees are regularized at least before one attains theageofretirement and in case, regular vacancy does not becomeavailable,in that case, such employee shall be takentohavebeenmade regular immediate before his retirement. Suchaliberaland pragmatic interpretation is the only effective modicum to achieveitsobject.Sufficetoobservethatrecoursetosucha policy decision is permissible under the mandate of Constitution Bench decision in Secretary, State Of Karnataka AndothersvsUmadeviAndOthers,2006(4) SCC 1. I nthelightoftheabovediscussion,therespondentis held entitled to the benefits of liberal construction of the policy as have been granted by the learned Single Judge. orthereasonsafore-stated,wedonotfindanymerit F in this appeal. Accordingly, the same is dismissed." 3. This Court in Kanta Rani vs. State of Punjab and others, CWP-1933-2014,decidedon28.10.2014,regularisedtheservicesofaparttime peon-cum-sweeperafter3decadesofcontinuousandfulltimeservice,relevant paras thereof read thus: " The second argument of the ld. Counsel for the respondents that there is no sanctioned post of sweeper in the office of respondent No.4 is also liable to be rejected. The petitioner has been continuously working with respondent No.4 since 1984. This necessarily implies that 2 of 5 ::: Downloaded on - 07-05-2024 02:35:33 ::: Neutral Citation No:=2024:PHHC:061475 CWP-14370-2017 (O&M) 2024:PHHC:061475 -3- thereisneedforasweeperintheofficeofrespondentNo.4. In fact,judicialnoticecanbetakenofthefactthatinevery office there is necessity of at least one sweeper, and in bigger offices the requirement would be more. It has not beenstatedbytherespondentsthatapartfromthepetitioner there are any other sweepers working in the office of respondent No. 4. I n Nihal Singh v. State of Punjab, (2013) 14 SCC 65,theHon'bleSupremeCourtheldthatwhenthereisneed for the creation of posts, the failure of the executive government to apply its mind and take adecisiontocreate posts or stop extracting work from persons for decades together itself would be arbitrary action (inaction) on the part of the State... xx xx xx hirdly, ithasbeencontendedthatthepetitionerwas T a part-timesweeper,hencehercasewasnotcoveredbythe instructionsdated23.1.2001(AnnexureP-9)whichareonly in relation to work charged/ daily wage employees. The petitioner in paragraph 3 of the petition has stated thatshe has been working throughout as peon-cum-sweeper in the office of the Executive Officer, Block Samiti Dina Nagar during full office hours from 9.00 A.M. to 5.00 P.M. This fact regarding the number of hours of duty/work of the petitioner has not been specifically denied. There is onlya bald denial stating that itisincorrectthatthepetitionerhas been working throughout as peoncum-sweeper and it has been asserted that the petitioner has been engaged as part-time sweeper. From this, it is clearthatthoughtermed part-time, the petitioner has been working in the office of respondentNo.4asafulltimeemployee.Shehascontinued to work in the same capacity for over 30 years now. Terming her as part-time is manifestly unjust. hus,ithastobeheldthatthepetitionerwasliableto T have been regularised both in terms of the circular letter dated 4.3.1999 and 23.1.2001 and the action of the respondents in denying her the benefit of regularisation is illegal. xx xx xx hus, in my opinion the petitioner's case for T regularisation has been wrongly rejected. She was eligible tohavebeenregularisedundereachoneofthethreepolicies referred to above. Itismanifestthatthepetitionerhasbeen extremely unfairlydealtwith.Forwhatshouldhaveflowed to her in normal course, she has been forced to repeatedly knock at the doors of the authorities and as a last resort approach the Court. While making her work full time, the respondents have persisted in terming her as part-time, taking shelter under theletterofappointment.Thisissheer exploitation of the poor petitioner." 3 of 5 ::: Downloaded on - 07-05-2024 02:35:33 ::: Neutral Citation No:=2024:PHHC:061475 CWP-14370-2017 (O&M) 2024:PHHC:061475 -4- 4. Relevant paras of Sukhdev Kaur vs. State of Punjab, CWP-12199-2000, decided on 23.09.2002, against which the SLP-4772-2003 filedbytheStatestandsdismissedvideorderdated31.03.2003,whereinapart time sweeper was granted regularization, read thus: " 10. Admittedly, the petitioners belongtoapoorsectionof the society. They have been working on the posts of Sweepers for a substantially long period of 10 years or more. Nothing has been placed on record which may even prima facie show that the petitioners have been found wantingintheperformanceoftheirduties.Stillfurther,itis not disputed that there isacontinuingneedforthepostsof Sweepers as it is necessary to have someone to clean the class-rooms and toilets etc. in the educational institutions. 11. In the background of this factual position, the short questionthatarisesforconsiderationis-Canthepetitioners be denied the relief of regularisation merely because their names had not been sponsored by the respective Employment Exchanges at the time of their entry into service ? 12. To answer this question, we have repeatedly askedMr. D.V. Sharma, if the State Government had issued any instructions to the Departments requiring that the posts of PartTimeSweepersshallbefilleduponlyaftersubmission of a requisition to the Employment Exchange.Thecounsel has not been able to point out anything from the record of thesecaseswhichmayindicatethatitwasnecessaryforthe Departments of the Government to ask for recommendations from the Employment Exchange. Still further, it is not disputed that the requirement for notification of thevacanciestotheEmploymentExchanges is not a mandatory pre-condition for filling up the postsin different servicesoftheGovernment.Infact,areferenceto Section 4(4) of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 clearly indicates that the provisions have not to be "deemed to impose any obligationuponanyemployertorecruitanypersonthrough the Employment Exchange to fill any vacancy merely because that vacancy has beennotifiedunder"sub-sections (1) and (2) of Section 4. The provision clearly militates against any plea of a mandatory requirement of law under whichtheemployermayberequiredtonotifythevacancies to the Employment Exchange. 13. In view of the factual position that there is nothing on record to show that the departments of the State Government had ever notified the vacancies of Part Time SweepersunderSection4totheEmploymentExchangesor that any instructions had beenissuedtotheDepartmentsto notify the vacancies to the Employment Exchanges, the 4 of 5 ::: Downloaded on - 07-05-2024 02:35:33 ::: Neutral Citation No:=2024:PHHC:061475 CWP-14370-2017 (O&M) 2024:PHHC:061475 -5- c ondition as now sought to be imposed is apparently arbitrary and unfair. xx xx xx 15. On a consideration of the matter, we are satisfied that the impugned orders are not just and fair. The petitioners havebeenmadetoworkforalongtimewithoutevenbeing placed in a regular scale. In fact, they are being paid a meagresumrangingfromRs.375/-toRs.600/-permonth. In the present day when the cost of living has gone very high, it is not a fair wage. 16.Inviewoftheabove,thewritpetitionsareallowed.The impugnedordersaresetaside.Therespondentsaredirected toconsidertheclaimofthepetitionersfortheregularisation of their services. They would be placed in a regular time scaleofpay.Theconsequentialreliefsshallalsobegivento them.Theneedfulshallbedonewithinonemonthfromthe date of receipt of a copy of this order." 5. Learned State counsel, despite his best efforts, is unable to controvert the factual position and draw out any distinctive aspects in the aforementioned judgments or cite any contrary law. 6. In view of the aforesaid, the present petition is disposed of in terms of the judgments passed in Surjit Kaur, Kanta Rani and Sukhdev Kaur(supra). (AMAN CHAUDHARY) JUDGE 0 3.05.2024 Hemant hether speaking/reasoned W : es / No Y Whether reportable : Yes / No 5 of 5 ::: Downloaded on - 07-05-2024 02:35:33 :::